Court File and Parties

COURT FILE NO.: 21-885 DATE: 2023/01/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – Brandon Lamoureux Accused

Counsel: Julien Lalande & Goher Irfan for the Crown Jason Gilbert for Brandon Lamoureux Doug Baum for Jason Gilbert

HEARD: January 19, 2023, Pembroke, oral reasons given January 23, 2023

RULING ON APPLICATION TO REMOVE COUNSEL FOR APPARENT CONFLICT

ANNE London-Weinstein J.

[1] Brandon Lamoureux is charged with second degree murder in the death of Gilbert Rumleskie, who died after suffering a single stab wound on July 21, 2021 at the Pine Tree Motel on Highway 60 outside of Eganville.

[2] The trial began on Monday, January 16, 2023. On January 17, Mr. Gilbert, defence counsel from Ottawa, Ontario, disclosed to the Crown for the first time that he represents Kayla Belisle in an ongoing criminal matter.

[3] Kayla Belisle is the mother of Jordan Plumb. Mr. Plumb was originally charged, along with Mr. Lamoureux in this matter. His charges were later dropped. In December of 2022, he provided a statement to police refuting his earlier statement and implicating Mr. Lamoureux in the homicide. One of the reasons he gave for his late change in his statement was his upbringing and his family environment.

[4] The death of the victim is captured on surveillance video. In the video Mr. Plumb holds the victim in a bear hug and appears to throw him to the ground. Mr. Lamoureux appears to be in the melee. It is the theory of the Crown that Mr. Lamoureux stabbed the victim a single time in the abdomen. The victim gets to his feet and takes a few steps and then falls to the ground. He succumbed to his injuries. Mr. Plumb is a key, if not the key witness for the Crown. The Crown seeks the removal of Mr. Gilbert due to the appearance of divided loyalty between clients, giving rise to an apparent conflict of interest.

The Facts:

[5] Mr. Gilbert’s representation of Ms. Belisle predates the killing of Gilbert Rumleskie. Her matter is being tried in the Ontario Court of Justice Pembroke and will continue next month. The trial started in the fall of 2022 and will continue next month in February of 2023. Mr. Gilbert began representing Mr. Lamoureux in an unrelated criminal matter at the Ontario Court of Justice in October of 2020 as well as in Family Court matters in the Superior Court of Justice.

[6] Mr. Gilbert first noticed Ms. Belisle’s name in the initial disclosure for Mr. Lamoureux which he received on August 20, 2021. At the time, Jordan Plumb was co-accused along with Mr. Lamoureux.

[7] Mr. Plumb is now 20 years old and lives with his mother Kayla Belisle. She accepted his subpoena for trial last month.

[8] Mr. Plumb is on social assistance. Ms. Belisle was interviewed by the OPP during its investigation into this case. Although she is not expected to testify, her name has already surfaced in cross-examination. The allegations against Ms. Belisle involve assaulting her child.

[9] With respect to the matter before the Court, the Crown abandoned its case against Mr. Plumb in April of 2022. In December of 2022, Mr. Plumb gave a witness statement identifying Mr. Lamoureux as the killer.

[10] The defence has indicated that its theory of this case is that Jordan Plumb is the actual murderer, and that Mr. Lamoureux is innocent. The murder weapon was alleged to have been found in the apartment of Jordan Plumb and his girlfriend at the time Ashley Dombroskie. A number of knives were seized from that room.

[11] The Crown seeks the removal of Mr. Gilbert due to a perceived breach of the duty of loyalty resulting in the appearance of conflict, rather than an actual conflict at this stage.

[12] Mr. Lamoureux was provided with independent legal advice by a senior member of the Pembroke bar, Mark Huckabone on January 19, 2023. Mr. Lamoureux’s position is that he wishes to retain Mr. Gilbert as counsel, but he remains unwilling to waive any conflict which may arise.

[13] No affidavit was provided on behalf of Ms. Belisle. There is no evidence that she is aware of Mr. Gilbert’s plan to cross-examine her son. Ms. Belisle has not waived any conflict which may arise.

[14] The question is whether there is an appearance to a reasonably informed member of the public that defence counsel may have received information from Ms. Belisle which would be relevant to his defence of Mr. Lamoureux which would reflect adversely on his relationship with Ms. Belisle and his defence of Mr Lamoureux.

Positions of the Parties:

[15] Mr. Gilbert’s position is that no reasonably informed member of the community would perceive any conflict, and that there is no appearance of conflict or divided loyalties. His position is that Mr. Lamoureux has no apparent conflict to waive.

[16] Mr. Gilbert wishes to continue to represent Mr. Lamoureux. The Crown seeks his removal for perceived rather than actual conflict at this stage and Mr. Lamoureux’s position is that he would like Mr. Gilbert to continue to represent him, but he will not waive any apparent conflict. Ms. Belisle’s position is unknown as no affidavit was submitted on her behalf and no waiver provided.

Analysis:

[17] In analyzing whether there exists a disqualifying conflict of interest the court must balance the right to counsel of choice and the maintenance of the high standard of the legal profession and the maintenance of the reputation for integrity of our system of justice.

[18] Public confidence in the administration of justice is the primary consideration in weighing whether counsel should be removed from record, outweighing even an individual litigant’s choice of counsel. MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 at para 59 and 60.

[19] As Cory J.A. noted in concurring reasons, “My colleague stated that this appeal called for the balancing of three competing values, namely the maintenance and integrity of our system of justice; the right of litigants not to be lightly deprived of their chosen counsel; and the desirability of permitting reasonable mobility in the legal profession. Of these factors, the most important and compelling is the preservation of the integrity of our system of justice. The necessity of selecting new counsel will certainly be inconvenient, unsettling and worrisome to clients. Reasonable mobility may well be important to lawyers. However, the integrity of the judicial system is of such fundamental importance to our country, and indeed to all free and democratic societies, that it must be the predominant consideration in any balancing of these three factors.”

[20] In R v. Widdifield, [1995] O.J. No. 2303 (C.A.) Doherty J.A. set out the test applied by a trial judge in assessing an alleged conflict of interest.

“It is important to distinguish between the respective functions of a trial judge and an appellate court when faced with a conflict of interests claim. Where the issue is raised at trial, the court must be concerned with actual conflicts of interests and potential conflicts that may develop as the trial unfolds. In deciding whether counsel should be permitted to act for co accused, trial judges must, to some degree speculate as to the issues which may arise and the course the trial will take. The trial judge’ task is particularly difficult since they cannot be privy to the confidential discussions which may have passed between the clients and counsel, and which may reveal the source of potential conflicts. Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of a conflict of interest they must direct that counsel not act for one or perhaps either accused.”

Use of Confidential Information:

[21] In this case, Mr. Gilbert has indicated in his submissions that he did not receive any confidential information from Ms. Belisle relating to Mr. Plumb. He did not submit an affidavit or testify on the application. However, while I accept Mr. Gilbert’s submission as far as it goes, this submission does not end the matter.

The Duty of Loyalty:

[22] The duty of loyalty which counsel owes to a client embraces concepts of privilege and confidentiality, but it is also far broader in scope. It recognizes that a lawyer who accepts a retainer pledges a commitment to the client’s cause. A lawyer who acts for a client will not act against that client in the same or related matter. R. v. Billy, 2009 ONSC 63957 para 25

[23] The duty to refrain from acting “against” a former client has been recognized in the jurisprudence. In R. v. Neil, 2002 SCC 70, [2002] S.C.J. No. 72, Justice Binnie observed in para 12 that:

“Unless a litigant is assured of the undivided loyalty of the lawyer, neither the public nor the litigant will have confidence that the legal system, which may appear to them to be a hostile and hideously complicated environment, is a reliable and trustworthy means of resolving their disputes and controversies. The above examples of harm to a former client involve the spectre of confidential information being misused. However, altogether apart from this possibility, counsel owes a broader duty of loyalty to a former client. As most rules of professional conduct suggest, a former client has a legitimate claim to expect counsel’s loyalty to persist with respect to the subject matter of a retainer, even after the client-lawyer relationship has ended and even if there is little or no possibility that confidential information can be misused. In such circumstances, courts are quite prepared to find that a reasonable member of the public would hold the integrity of the justice system in considerably less esteem if, despite the protests of the former client, the original lawyer was permitted to launch an all out attack.”

[24] The appearance of divided loyalties will often translate into an appearance of a conflict of interest whether or not the lawyer is likely to use confidential information. Certain retainers will, by their very nature, foreclose other retainers. A lawyer cannot act if to do so would cause a reasonably informed member of the public to question the fairness and integrity of the justice system. Billy, at para 30.

[25] In this case Mr. Gilbert acts for Mr. Lamoureux who is charged with murder. He also acts for the mother of the Crown’s primary witness, in an ongoing criminal matter where she is accused of assaulting her child.

[26] The issue is whether there is an appearance of a conflict of interest.

[27] There is no information provided from Ms. Belisle as to her views regarding her relationship with Mr. Gilbert. No waiver was provided.

[28] I am also concerned regarding the perception of a conflict on the part of Mr. Gilbert in relation to his defence of Mr. Lamoureux.

[29] Given that Mr. Gilbert has a duty of loyalty to Ms. Belisle, and also a duty of loyalty to Mr. Lamoureux, there is a likelihood that a reasonable member of the public would conclude that these loyalties appear to be divided.

[30] While I do not doubt Mr. Gilbert’s submission that he has not knowingly received confidential information from Ms. Belisle regarding her son Jordan Plumb, he may have done so unknowingly in preparing for trial. Without piercing that privilege, it is impossible to determine if that is the case.

[31] Further, a reasonable member of the public may have a concern that Mr. Gilbert’s duty of loyalty to Ms. Belisle may, even unconsciously, impact his cross-examination of Mr. Plumb. In my view there exists the perception of divided loyalties.

[32] Further, while Ms. Belisle is not currently on the witness list, criminal trials are notoriously unpredictable. It is entirely possible that a matter may emerge in this trial, particularly during the cross-examination of Mr. Plumb, which may necessitate the Crown needing to call Ms. Belisle as a witness. There is also a reasonable possibility that defence counsel may wish to explore what Mr Plumb may have said to his mother regarding the death of the victim, or any discussions he had with her prior to giving his statement to police incriminating Mr. Lamoureux.

[33] Mr. Gilbert is defending Ms. Belisle on a charge of assaulting one of Mr. Plumb’s siblings. Mr. Gilbert did not know if Mr. Plumb was living with his mother at the time of the alleged assault.

[34] One of the key issues in this case will be the credibility of Mr. Plumb. In a statement to police, he indicated that he did not tell the truth initially because of his family and the way he was raised. He said it was driven home to him in his family that to tell on someone would be to be a “rat”. Defence counsel will undoubtedly have to challenge this statement. Given Mr. Gilbert’s representation of Ms. Belisle on a case where she is alleged to have assaulted her child, Mr. Gilbert is put in a difficult position. If he cross-examines Mr. Plumb regarding his family, he will appear to be using confidential information gained through representing Ms. Belisle without her consent and without a waiver, to undermine her son’s credibility. If he avoids this line of questioning, it will appear as though his attempt to avoid appearing to rely on confidential information has hindered his defence of Mr. Lamoureux.

[35] A conflict of interest occurs whenever there is a substantial risk that a lawyer’s loyalty to, or representation of, a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duty to another client, a former client or a third person. The risk must be more than a mere possibility, there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer. Law Society of Ontario. Rules of Professional Conduct, section 1.1.

[36] Information acquired in the course of representing a client may not be subsequently used or revealed by the lawyer at a disadvantage of his or her former client. Even in cases where the prior information did not involve substantially the same subject matter as at issue in the present criminal trial, “there may exist circumstances for the use, potential for use, or appearance of temptation or opportunity to use confidential information secured in the course of an earlier retainer relationship with the new prosecution witness.” R. v. Brisket (2005), 2005 ONSC 2716, 74 O.R. (3d) 248 (S.C.) at para 41.

[37] The appearance of the opportunity to use confidential information obtained through Mr. Gilbert acting for Ms. Belisle is present in this case. The fact that Ms. Belisle may not have actually shared confidential information with Mr. Gilbert is not the point. Appearances matter. Trials must not only be fair, but the appearance of fairness must also be maintained to preserve public confidence in the administration of justice.

[38] The facts in this case are somewhat unusual, in that Mr. Gilbert’s representation of a non-party to this litigation is the source of the appearance of conflict with a party to this litigation, the accused.

[39] However, as in R. v. Wetelainen, an unreported decision of Justice Claudia C. Belda, 2022 ONCJ 490 Mr. Gilbert could be in a position of not being able to provide Mr. Lamoureux with his best defence in an effort to avoid the appearance of misusing confidential information. Further, given Mr. Plumb’s stated reason for failing to reveal Mr. Lamoureux as the killer, attributing it to his family upbringing, there will be an appearance that Mr. Gilbert may be relying on his knowledge of the family gained through his retainer to Ms. Belisle. Importantly, there is no waiver from Ms. Belisle consenting to any confidential information being shared.

[40] Mr. Gilbert is in a position where his loyalty to one client may impact his loyalty to a second client undermining the duty of confidentiality to Ms. Belisle.

[41] Issues of conflict of interest in the lawyer-client context are of concern because one of the tenets of our legal system is that an accused person has the right to have a lawyer defend him or her without the possibility that loyalty to another might detract from the defence of the accused. R. v. Wetelainen at para 71

[42] Having found that there is an apparent conflict related to perceived divided loyalty, I turn to the right to counsel. The right to counsel is enshrined in the Charter. It is a critically important right and its importance is critical in a case where the penalty upon conviction is life imprisonment.

[43] However, the right to counsel of choice is not without limits. R. v. Speid (1983), 6 C.C.C. (3d) 18 (Ont. C.A.)

[44] As stated in R. v. Robillard (1986), 28 C.C.C. (3d) 22 (Ont. C.A.) at para 5: the fundamental fairness of the criminal trial process “requires not only the avoidance of any professional impropriety, but also the avoidance of any appearance of impropriety.”

[45] A reasonably informed member of the public would regard Mr. Gilbert to be in a position of apparent divided loyalty. If he cross-examines Mr. Plumb regarding his stated reason for failing to implicate Mr. Lamoureux as the killer initially, he will appear to be relying on confidential information based on his relationship to Mr. Plumb’s mother, Ms. Belisle who he represents in a separate criminal matter. If he does not cross-examine Mr. Plumb regarding his family, he will appear to be shirking in his duty to Mr. Lamoureux. In the unusual circumstances of this case, Mr. Gilbert has been put in an untenable position. There is an appearance of divided loyalty which a reasonably informed member of the public would find troubling.

[46] Mr. Lamoureux should not be deprived of his counsel of choice without good cause. Counsel should not be ordered removed unless there are compelling reasons to do so. R. v. Speid

[47] In this case, there are compelling reasons to remove counsel. Counsel is in a Catch 22 situation, where his representation of Ms. Belisle has compromised his ability to defend Mr. Lamoureux. Further, the cross examination of Mr. Plumb will give rise to an appearance that he is relying on confidential information when he cross examines, as he must, Mr. Plumb’s stated reason for failing to disclose Mr. Lamoureux as the killer initially.

[48] Mr. Gilbert must be removed as counsel. The trial has heard only two police witnesses. A pretrial motion has been heard, but no decision rendered yet. New counsel must be retained. If Mr. Lamoureux has any difficulties with Legal Aid funding, a Rowbotham application may be brought on an expedited basis before me. I will order the transcripts of the two witnesses who currently testified. If new counsel wishes that they be recalled for any purpose, I will entertain that notion.

Anne London-Weinstein J.

Released: January 24, 2023